Alternative Dispute Resolution refers to processes for resolving disputes other than litigation. The
distinction between the various types of dispute resolution processes,
they can be arranged from the perspective of the level of control the
disputants have over the process the more formal they get the less
control the parties have.
1. Dispute Prevention
2. Negotiation
3. Mediation;
4. Hybrid between mediation and arbitration (Medarb)
5. Hybrid between arbitration and mediation (Arbmed)
6. Arbitration
7. Litigation or the trial itself.
There are other mechanisms or processes that exist; there are many trials and early neutral evaluations. As we examine these processes the following features emerge
a. The more formal the process, the higher the level of involvement by a third party in the process.
Parties do not have a say in the process itself but they are bound by
rules of procedure which they have to follow so compared to other
processes like arbitration the element of party participation in
arbitration is higher because the parties are at liberty to decide which
rules of procedure to apply or the venue etc.
b. As you approach the more formal processes like litigation, the process is increasingly formal
from the dress that the parties wear, i.e. wigs an gowns in litigation
or judicial process, manner of address, references to magistrates and
Judges as my lord and your honour, the requirement as to pleadings and
the format that they have to meet etc,
c. The more formal the process, the more the danger or likelihood of potentially damaging the relationship between the disputants. The
decision that is reached after the result of a trial is an imposed
decision and carries consequences for not complying with it. Secondly
the parties have not voluntarily submitted to that process. For example
in a matrimonial dispute where a husband is forced to pay alimony to
the wife, that kind of decision cannot endear the parties to each other,
the more formal it is the likelihood of destroying the relationships.
d. Arguably the more the formal the processes the more expensive
it is, arguably because arbitration can be expensive as well, getting
the disputes through the process is very expensive in terms of court
fees, lawyers fees etc.
The
standard practice in arbitration is that the arbitrator is paid on an
hourly basis that is not to say that the arbitrator is not at liberty to
value his services with that value of the dispute, he is at liberty to
adopt a method of charging that best suits him.
e. The process of litigation tends to take longer. From commencement to the stage of the dispute resolution the amount of time taken is a lot longer. Rules of procedure in litigation are rigid and they tend to make a case to last longer than it should. There is also the backlog and the volume of work that the judiciary have to go through, it’s a lot.
f. Finally the more formal the structure is, the higher the focus on the disputants’ rights as opposed to their interests. The
distinction between interests and rights is that interests of parties
are usually in having a continuous relationship and when parties
litigate their interests are destroyed by virtue of enforcing their
legal rights.
DISPUTE PREVENTION
One mechanism for preventing disputes is by providing dispute resolution training. Training that provides people with skills to prevent unnecessary disputes. If you take a typical case of a husband and wife, how would training come in to prevent disputes arising? Training maybe in better communication skills.
Second method of dispute resolution is partnering. This requires disputants involved in a project to meet to discuss how to resolve any conflict which may arise. If
for instance there is a building contract that involves, employer, QS
engineer building contractor etc. these people can meet at their own set
of this project and decide that should conflict arise we will deal with
it in this fashion that is partnering. They can agree for instance that the decision of the architect will be the final decision.
The
other form of dispute prevention is systems design which involves
determining in advance what process would be used for handling conflicts
which arise.
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